Cite as U.S. v. Voegele, 346 F.Supp. 7 (E.D.Mich 1972)
United States of America, Plaintiff,
v.
Frederick Voegele, Defendant.
Crim. No. 47025.
United States District Court, E. D. Michigan, S. D.
July 24, 1972.
Robert P. Hurlbert, Detroit, Mich., for plaintiff.
Robert Lesnick, Dearborn, Mich., for defendant.
MEMORANDUM OPINION
JOINER, District Judge.
Defendant Voegele has made four motions regarding the
suppression of evidence or dismissal of charges. The Court has
taken testimony, listened to the arguments of counsel, and read the
supporting briefs filed and decided to deny all four motions.
The facts support the following description of the way in
which the case arose: Richard Curtis Gilmore was arrested by the
Pontiac police for possession of what is commonly known as a
sawed-off shotgun. He subsequently informed government agents that
the barrel of the shotgun had been shortened at Brigg's Sporting
Goods Shop in Keego Harbor. The government agents subsequently
obtained a search warrant authorizing a search of the gunshop for
the residual portion of the barrel, any filings or other debris,
and the tools used in the shortening of the barrel. When the agents
went to execute the warrant they observed the defendant, proprietor
of the shop, leaving the shop and starting to drive away from the
premises. (Both agents were acquaintances of the Defendant.) One of
the agents asked the Defendant to stop and return to the gunshop,
thus avoiding the necessity for forcing their way onto the
premises. The Defendant voluntarily drove his truck alone back to
the gunshop. The agents showed the Defendant the search warrant. He
opened the shop for them. The agents showed the Defendant the
sawed-off barrel and Voegele replied, "Oh my God, I'll tell you
about it." Voegele was read a warning in the following language:
"Before we ask you any questions, it is my duty to advise you
of your rights.
"You have the right to remain silent.
"Anything you say can be used against you in court, or other
proceedings.
"You have the right to consult an attorney before making any
statement or answering any question, and you may have him
present with you during questioning.
"You may have an attorney appointed by the U.S. Commissioner
or the court to represent you if you cannot afford or
otherwise obtain one.
"If you decide to answer questions now with or without a
lawyer, you still have the right to stop the questioning at
any time, or to stop the questioning for the purpose of
consulting a lawyer.
"However, you may waive the right to advice of counsel and
your right to remain silent, and you may answer questions or
make a statement without consulting a lawyer if you so
desire."
He then admitted sawing off the barrel two days before. He
admitted he knew this to be a violation of the law. At the request
of the officers, Voegele pointed out the other portion of the
barrel and the hack saw used. Voegele was then arrested but not
handcuffed. When all items listed in the search warrant were
seized, the agent in charge ordered his associates to terminate the
search and to begin a compliance inspection, which is authorized
under 18 U.S. C. section 923(g). During the compliance inspection,
the agents discovered the other items contraband and evidence which
the defendant seeks to suppress. Voegele cooperated with the
officers in this inspection and directed the officers to other guns
that were seized.
The Defendant has asserted that when the government agents
requested him to return to the gunshop that he was actually under
an illegal arrest, and because of the so-called illegal arrest any
admissions or items of evidence subsequently discovered should be
barred. The only testimony presented on this issue was that from
Agent Patrick Mueller. He testified that as the Defendant left the
gunshop, he followed and within a block or two signaled with his
hand that he wanted the Defendant to stop. The Defendant recognized
the agent and, at the agent's signal, pulled his car off the road.
At that time, Defendant Voegele was requested to return to his
store. The Defendant willingly consented to do so. Defendant
Voegele returned to the store in his own vehicle, unaccompanied by
any of the government agents. The Court concludes, based on the
testimony presented, that there was no arrest at this time, illegal
or otherwise, and there exists no grounds in this area to bar any
admissions or evidence.
Defendant Voegele also argues that evidence found pursuant to
the search warrant should be suppressed. He asserts that there was
no probable cause to justify issuing a search warrant, and because
the warrant was issued in violation of Rule 41(b) of the Federal
Rules of Criminal Procedure, asserts that this rule does not
authorize a search for mere evidence of a crime but rather is
limited to instruments used in the commission of a crime. The
affidavit supporting the request for a search warrant, supported at
the hearing by the testimony of the agents, defeats the first half
of this motion. The affidavit and evidence assert that a person who
was arrested while in possession of a sawed-off shotgun had
informed a government agent that the barrel of the shotgun had been
altered from its original size to its illegal shortened length at
the defendant's gunshop. This was sufficient to cause a warrant to
be issued.
The argument that Rule 41(b) limits issuance of search
warrants to items intended for use or used in the commission of a
criminal offense is not tenable. 18 U.S.C. section 3103a provides,
"In addition to the grounds for issuing a warrant in (Rule 41), a
warrant may be issued to search for and seize any property that
constitutes evidence of a criminal offense in violation of the laws
of the United States." As was said in Warden v. Hayden, 387 U.S
294, 306, 87 S.Ct. 1642, 1649, 18 L.Ed.2d 782 (1967), "(the
premise) . . . that (the) government may not seize evidence simply
for the purpose of proving crime has been discredited."
The Defendant also moves to suppress evidence found during the
compliance inspection, authorized under 18 U.S.C. section 923(g),
because the compliance inspection was not conducted during business
hours. The statute contains an authorization to "enter during
business hours" for the purpose of inspecting records and stock
of any firearms dealer. This inspection is what the government
agents describe as a compliance inspection. The statute does not
bar conducting a compliance inspection where legal entry has been
gained during non-business hours. In the instant case the
government agents had gained legal entry pursuant to a valid search
warrant. This having been accomplished the agents were free to
conduct the compliance inspection. This is analogous to the cases
where a Defendant has sought to suppress evidence discovered during
a search which was timely begun pursuant to a daytime warrant but
continued into the night time. This point has been considered in a
number of cases and the rule seems clear that it is sufficient if
the search begins in the daytime, although it continues after dark.
United States v. Joseph, 174 F. Supp. 539 (E.D.Pa. 1959), aff'd 278
F.2d 504, cert. denied 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52, and
United States v. Bell, 126 F.Supp. 612 (D.C.D.C.1955), aff'd, 240
F.2d 37.
The provisions of 18 U.S.C. section 923 authorizing entry for
the purpose of inspecting and examining records and stock are a
part of a broad comprehensive treatment of licensing the
manufacture, sale and distribution of firearms. ". . . close
scrutiny of this traffic is undeniably of central importance in
federal efforts to prevent violent crime and to assist the States
in regulating the firearms traffic within their borders." United
States v. Biswell, 406 U.S. 311, 315, 92 S.Ct. 1593, 1596, 32 L.
Ed.2d 87 (1972). The act deals with all kinds of weapons or
destructive devices, as well as with importers, manufacturers,
dealers, pawn brokers and collectors of firearms. It provides
stringent rules about these dangerous weapons. In no way can the
language "enter during business hours" found in Section 923(g) be
construed to proscribe the carrying on of an inspection beyond
business hours or during a time when the agents were otherwise
lawfully on the premises. It is also clear that the inspection
authorized by Section 923 is an important part of the overall
regulation of firearms and destructive devices. The wording of the
statute itself lends credence to the Court's interpretation.
[footnote 1] Section 923(g) provides that records must be made
available at "all reasonable times". Certainly a reasonable time
must be when all parties concerned are validly on the premises. The
only fair construction of the statute is that a compliance
inspection may be conducted at a reasonable time, and a reasonable
time is when entry is gained during business hours, or in some
otherwise valid manner, such as with a search warrant or when the
proprietor has willingly consented to the entry.
It should be noted that the policy of the business hours
limitation in the statute is to prevent the government from
harassing the small businessman by compelling him to open his shop
for a compliance inspection at any hour of the day or night.
Defendant Voegele had already voluntarily returned to his shop for
another reason, so there was no great inconvenience involved in
subjecting him to the inspection, and thus no violation of the
policy this portion of the statute seeks to implement. Although
Defendant was present and consented to the compliance inspection,
the more important fact is that the officers entered the premises
validly and were validly on the premises at the time of the
inspection. "In the context of a regulatory inspection system of
business premises which is carefully limited in time, place, and
scope, the legality of the search depends not on consent but on the
authority of a valid statute . . . . When a dealer chooses to
engage in this pervasively regulated business and to accept a
federal license, he does so with the knowledge that his business
records, firearms and ammunition will be subject to effective
inspection." United States v. Biswell, 406 U.S. 311, 315-316, 92
S.Ct. 1593, 1596, 32 L.Ed.2d 87, 40 L.W. 4489, 4491 (1972). The
compliance inspection as conducted does no harm to the Defendant's
Fourth Amendment Constitutional Rights, United States v. Biswell,
supra. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18
L.Ed.2d 930 (1967) and See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737,
18 L.Ed.2d 943 (1967) are not to the contrary.
It also appears to the Court that the Defendant not only
consented to, but cooperated with the officers in, the compliance
inspection after being placed under arrest and warned about his
constitutional rights. The record discloses that he led the
officers to certain of the guns confiscated by the officers. The
attitude of the Defendant at that time appears to the Court to
amount to a consent to an inspection at this time, United States v.
Burgos, 269 F.2d 763 (2 Cir. 1959), cert. denied 362 U.S. 942, 80
S.Ct. 808, 4 L.Ed.2d 771 (1960); United States v. MacLeod, 207 F.2d
853 (7 Cir. 1953), and, although waiver of constitutional rights is
not to be lightly assumed, there appears to be clear and positive
evidence that there was consent to the search, United States v.
Smith, 308 F.2d 657 (2 Cir. 1962), cert. denied 372 U.S. 906, 83
S.Ct. 717, 9 L.Ed.2d 716. This is supported by the fact that this
all took place after the arrest was made and the warnings were
given, as well as his making a statement to the officers, United
States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140
(1944). The issue is not whether the consent was sufficiently broad
to permit an independent search. It is a narrower issue. Was the
consent and cooperation of a sufficient nature to show that the
compliance inspection that was then being conducted by the officers
was reasonable. It clearly was.
Lastly, the Defendant asserts that Count One of the Indictment
is not valid because Section 5861 of 26 U.S.C. prohibits a person
from making a firearm. Defendant contends that merely sawing a gun
barrel into two pieces, by itself, cannot be construed as making a
firearm. The Defendant has overlooked the definitional portion of
the statute, 26 U.S.C. section 5845(i), which provides that the
term "make" includes altering a firearm. This, the Defendant is
alleged to have done when he cut the gun barrel into two pieces. It
should make no difference either, whether at the time the barrel
was sawed off, the stock was or was not attached to the barrel. In
either case, a firearm was altered and thus was "made" within the
terms of the statute.
For the above reasons, the Defendant's motions are denied.
FOOTNOTES
1. Section 923(g) provides as follows:
Each licensed importer, licensed manufacturer, licensed dealer, and
licensed collector shall maintain such records of importation,
production, shipment, receipt, sale, or other disposition, of
firearms and ammunition at such place, for such period, and in such
form as the Secretary may by regulations prescribe. Such importers,
manufacturers, dealers, and collectors shall make such records
available for inspection at all reasonable times, and shall submit
to the Secretary such reports and information with respect to such
records and the contents thereof as he shall by regulations
prescribe. The Secretary may enter during business hours the
premises (including places of storage) of any firearms or
ammunition importer, manufacturer, dealer, or collector for the
purpose of inspecting or examining (1) any records or documents
required to be kept by such importer, manufacturer, dealer, or
collector under the provisions of this chapter or regulations
issued under this chapter, and (2) any firearms or ammunition kept
or stored by such importer, manufacturer, dealer, or collector at
such premises. Upon the request of any State or any political
subdivision thereof, the Secretary may make available to such State
or any political subdivision thereof, any information which he may
obtain by reason of the provisions of this chapter with respect to
the identification of persons within such State or political
subdivision thereof, who have purchased or received firearms or
ammunition, together, with a description of such firearms or
ammunition.